Andhra HC (Pre-Telangana)
Korrai Chilakaiah & 8 Others vs The State Of A.P.,Rep. By Its Public ... on 18 March, 2013
Bench: K.C.Bhanu, M.S.Ramachandra Rao
THE HON'BLE SRI JUSTICE K.C.BHANU AND THE HON'BLE SRI JUSTICE M.S.RAMACHANDRA RAO
CRIMINAL APPEAL NO.1754 OF 2006 and batch
dated:18-03-2013
Korrai Chilakaiah & 8 others .. Appellents
The State of A.P.,rep. by its Public Prosecutor,High Court of A.P., Hyderabad.
.. Respondent
!Counsel for the Appellents: Sri M.Viswanadham
Counsel for Respondent: Public Prosecutor.
#The State of A.P.,rep. By its Public Prosecutor,High Court of A.P.,Hyderabad.
.. Appellant
$Avala Krishnarao & 20 others.
.. Respondents
<Gist :
>Head Note:
?Cases referred:
1 2003 SUPREME COURT CASES (CRI)1829
2 AIR 2005 SUPREME COURT 1096
3 (2003) 3 SUPREME COURT CASES 355
4 AIR 2003 SC 2213
5 1993 CRLJ 2857 (SC)
THE HONOURABLE SRI JUSTICE K.C.BHANU AND THE HONOURABLE SRI JUSTICE
M.S.RAMACHANDRA RAO
COMMON JUDGMENT:(per Hon'ble Sri Justice K.C.Bhanu) These Criminal Appeals are preferred against the judgment, dated 18.12.2006, in S.C.No.162 of 2000 on the file of the learned II Additional District and Sessions Judge (Fast Track Court), Srikakulam.
2. Heard learned counsel appearing for the appellants; learned Additional Public Prosecutor, and perused the impugned judgment as well as the other material on record.
3. The case of prosecution, in brief, may be stated as follows:
A1 is the native of Palatalagam village of Santabommali mandal, who retired as A.S.I. of Police in RPF and after retirement came back and settled in his village; A2 is his younger brother and A5 is his son, and that A2 to A21 belong to Telugu Desam Party headed by A1; that Badalgala Prasadarao-deceased was also the resident of the same village and he is Kalinga by community and living by doing cultivation; that P.W.1 is also the resident of the same village-Palatalagam and is Yadava by community and also Sarpanch of the village and they belong to Congress-I Party. P.Ws.2, 3, 10, 4, 5, 9, 6 & 7 are strong supporters of P.W.1; that Batakala Suryanarayana-LW.10 is the son of the deceased-Prasadarao and P.W.8 and L.W.13-Sanapala Srinivasarao and Kesavarao are also related to the deceased; that N.Laxminarayana, K.Dharma, K.Krishnarao, M.Latchayya, N.Durgulu, S.Malesu, B.Krishna and Sanapala Murali (L.Ws.14 to 21) are also the followers of P.W.1; that in the year, 1995 panchayat elections were held in which Muddapu Krishna Murthy was elected with the support of Congress-I Party and after his death in 1997, PW.1 who was the Vice-Sarpanch was also in- charge of the Sarpanch post and in the year, 1998 by-elections were held in which P.W.1 and A1 contested and A1 was defeated and ever since there were strong differences between the two groups and also on account of political rivalry they were waiting for an opportunity to take vengeance and in connection with the earlier disputes in Cr.No.98/1999 and 99/1999 and M.C.1 & 2 were launched under Section 107 Cr.P.C. against both groups for maintaining law and order; that while the things stood thus, on 23.5.2000 the villagers were celebrating the festival of village goddess-'Pala Polamma Ammavaru' and at that time it was decided by both groups that only female members should be allowed to participate in the procession and at about 2.30 P.M, while the women folk was going to the temple in the procession, A1 to A.21 armed with knives, spears, kathuvas, stout sticks and stones came on the road and started hurling stones against P.W.1 and his followers, including the deceased, with an intention to kill the deceased and P.Ws.1 & 2 and his other followers. However P.W.1 escaped from the attack and P.Ws.2, 3, 10, 4, 5, 9, 6 & 7 were attacked and the deceased sustained serious injuries; that A2, A4 & A6 beat the deceased with knives and other accused also beat the deceased with stones on account of which the deceased sustained severe injuries and died. A2 and A4 armed with knives and A12 armed with stout stick beat PW.2; A3 armed with kattuva, A8 armed with stout stick and A10 armed with stout stick beat P.W.3; that A4 armed with a knife, A13 armed with stout stick beat P.W.10; that A6 beat PW.4 with a knife, A14, A15 beat P.W.4 with a stout stick and stone respectively, A6, A20, A9 also beat P.W.5; A17 to A19, A21 also beat P.W.5; A5 stabbed P.W.9 with spear and A7 and A1 beat him with a stout stick and caused injuries; that A11 beat P.W.6 with stout sticks and caused injuries; A2 also caused bleeding injury on the head of P.W.7 with a knife; that the police shifted the injured to the hospital and Badagala Prasadarao died due to the injuries at the hospital and other injured were treated by the doctor-P.W.12 and P.W.1 gave a report to the police, which was registered as a case in Cr.No.23/2000. After obtaining wound certificate, RFSL certificate and postmortem certificate, P.W.17-Investigation Officer filed charge sheet. During pendency of trial A2 died and case against him was abated as per orders, dated 30.9.2002 of the trial Court.
4. The charges levelled against the accused are as follows:
Charge No.1:
That, on the 23rd day of May, 2000, at about 2.30 p.m., near Ammavari temple situated at Palatalagam village, you A.1 and A.3 to A.21 along with Avala Sankararao (A.2 the case against whom abated as he died) were members of an unlawful assembly formed with the common object of attacking and killing Badagala Prasadarao and his followers, who are your rival group in the village, and in prosecution of the said common object of such unlawful assembly, did commit the offence of rioting and at that time, you were armed with deadly weapons like knives, spears, kathuvas, stout sticks, stones, which if used as weapons of offence are likely to cause death, and that you A.1 and A.3 to A.21 thereby committed an offence punishable under Section 148 I.P.C.
and within my cognizance;
Charge No.2:
That on the same day and at the same time and place and during the course of the same transaction mentioned in the aforesaid charge No.1, you A.1 and A.3 to A.21 along with Avala Sankararao (A.2 the case against whom abated as he died) did commit murder by intentionally or knowingly causing the death of Badagala Prasadarao, son of late Appayya, by brutally attacking him with knives, spears, kathuvas, stout sticks and stones and causing fatal injuries on his vital parts, and thereby committed an offence punishable under Section 302 I.P.C. and within my cognizance;
Charge No.3:
That on the same day and at the same time and place and during the course of the same transaction mentioned in the aforesaid charge No.1, A.4 of you, being armed with a knife, and A.12 of you, being armed with a stout stick, voluntarily caused grievous hurt to Nakketla Appanna, son of Durgulu, by means of the aforesaid instruments, which if used as weapons of offence likely to cause death and hence, deadly weapons, and thereby committed an offence punishable under Section 326 I.P.C. and within my cognizance;
Charge No.4:
That on the same day and at the same time and place and during the course of the same transaction mentioned in the aforesaid charge No.1, A.3 of you, being armed with a kathuva, A.8 of you, being armed with a stick, voluntarily caused hurt to Korrai Adavayya, son of late Narasimhulu, by means of the aforesaid respective instruments, which if used as weapons of offence likely to cause death and hence, deadly weapons, and thereby committed an offence punishable under Section 324 I.P.C. and within my cognizance;
Charge No.5:
That on the same day and at the same time and place and during the course of the same transaction mentioned in the aforesaid charge No.1, you A.4, being armed with a knife, and A.13 of you, being armed with a stick, voluntarily caused grievous hurt to Korrai Latchayya, son of Appanna, by means of the respective aforesaid instruments, which if used as weapons of offence likely to cause death and hence, deadly weapons, and thereby committed an offence punishable under Section 326 I.P.C. and within my cognizance;
Charge No.6:
That on the same day and at the same time and place and during the course of the same transaction mentioned in the aforesaid charge No.1, you A.6, being armed with a knife, you A.14, being armed with a stone, voluntarily caused hurt to Murapala Atchayya, son of Gunnayya, by means of the aforesaid respective instruments, which if used as weapons of offence likely to cause death and hence, deadly weapons, and thereby committed an offence punishable under Section 324 I.P.C. and within my cognizance;
Charge No.7:
That on the same day and at the same time and place and during the course of the same transaction mentioned in the aforesaid charge No.1, you A.6, being armed with a knife, and you A.9, A.16, A.17, A.18 and A.19, being armed with stones, voluntarily caused hurt to Korrai Bujji alias Ramesh, son of Krishnamurty, by means of the aforesaid respective instruments, which if used a weapons of offence likely to cause death and hence, deadly weapons, and thereby committed an offence punishable under Section 324 I.P.C. and within my cognizance;
Charge No.8:
That on the same day and at the same time and place and during the course of the same transaction mentioned in the aforesaid charge No.1, you A.20 voluntarily caused grievous hurt to Korrai Bujji alias Ramesh, son of Krishnamurty, by means of a stout stick, a deadly weapon, and thereby committed an offence punishable under Section 326 I.P.C. and within my cognizance;
Charge No.9:
That on the same day and at the same time and place and during the course of the same transaction mentioned in the aforesaid charge No.1, you A.5, again being armed with a stout stick, voluntarily caused grievous hurt to Korrai Chinnavadu, son of Thavudu, by beating him with the aforesaid instrument, which is a deadly weapon, and thereby committed an offence punishable under Section 326 I.P.C. and within my cognizance;
Charge No.10:
That on the same day and at the same time and place and during the course of the same transaction mentioned in the aforesaid charge No.1, you A.5, again being armed with a stout stick, voluntarily caused grievous hurt to the said Korrai Chinnavadu, son of Thavudu, by beating him with the aforesaid instrument, which is a deadly weapon, and thereby committed an offence punishable under Section 326 IPC and within my cognizance;
Charge No.11:
That on the same day and at the same time and place and during the course of the same transaction mentioned in the aforesaid charge No.1, you A5, being armed with a spear, and you A.11, being armed with a stick, voluntarily caused hurt to Muddapu Gavarayya, son of Gaddenna, by means of the aforesaid respective instruments, which if used as weapons of offence are likely to cause death and hence, deadly weapons, and thereby committed an offence punishable under Section 324 I.P.C. and within my cognizance;
Charge No.12:
That on the same day and at the same time and place and during the course of the same transaction mentioned in the aforesaid charge No.1, you A.1 and A.3 to A.21 along with Avala Sankararao (A.2 the case against whom abated as he died), being armed with deadly weapons like knives, spears, kathuvas and stones, voluntarily caused hurt to Korrai Eswararao, son of Chinnavadu, by beating him and causing simple injuries to him, and thereby committed an offence punishable under Section 324 I.P.C. and within my cognizance".
Charge No.13:
That on the same day and at the same time and place and during the course of the same transaction mentioned in the aforesaid charge No.1, you A.1 and A.3 to A.21 along with Avala Sankararao (A.2 the case against whom abated as he died) were members of an unlawful assembly formed with the common object of killing Badagala Prasadarao and causing injuries to his followers, i.e., Nakketla Appanna, Korrai Adavayya, Korrai Latchayya, Murapala Atchayya, Korrai Bujjie @ Ramesh, Korrai Chinnavadu, Muddapu Gavarayya and Korrai Eswararao, and in prosecution of the said common object of such assembly, you committed the offences of murder, voluntarily causing hurt and grievous hurt punishable under sections 302, 324 and 326 I.P.C., which offences you all knew likely to be committed in prosecution of the common object of such assembly, and that you A.1 and A.3 to A.21 are thereby under Section 149 I.P.C. guilty of committing the said offences punishable under Sections 302, 324 and 326 I.P.C. and within my cognizance".
5. When the respective charges were read over and explained to the respective accused in Telugu, they pleaded not guilty and claimed to be tried.
6. To substantiate the charges, the prosecution examined P.Ws.1 to 18 and got marked Exs.P1 to P24 besides case properties M.Os.1 to 22. On behalf of the accused no witnesses were examined but Exs.D1 to D10-contradictions were got marked.
7. The trial Court, after considering the evidence on record, found A6 and A20 guilty of the offence punishable under Section 326 IPC and convicted and sentenced to undergo rigorous imprisonment for a period of three years and also to pay a fine of Rs.500/- ( rupees five hundred only), in default to further undergo simple imprisonment for one month; A4 (for three counts), A5, A6 ( for two counts), A8, A11, A12 to A14 guilty for the offence under Section 324 IPC and convicted and sentenced to undergo rigorous imprisonment for a period of two years each and also to pay a fine of Rs.200/- (rupees two hundred only). However, the trial Court found A1, A3, A7, A9, A10, A15 to A19 and A21 not guilty of the charges levelled against them and accordingly acquitted them. Aggrieved by the acquittal of A1, A3, A7, A9, A10, A15 to A19 and A21, the State preferred Crl.A.No.537 of 2008, whereas challenging the convictions and sentences recorded against A.4 to A.6, A.8, A.11 to A.14 and A.20, the accused preferred Crl.A.No.1754 of 2006.
8. Since both the appeals arise out of the same judgment, they are being disposed of by this common judgment.
9. Now the point for determination is whether the prosecution proved its case beyond all reasonable doubt for the charges levelled against the appellants- accused and whether the Judgment of the trial Court is correct and proper.
10. The learned Public Prosecutor in Crl.A.No.535 of 2008 contended that the evidence of the eye witnesses would clearly go to show that A4, A6, A8 and A10 also caused injuries on the vital parts of the body of the deceased and merely because some irregularities are committed by the Investigating Officer, that cannot be a ground to discard the testimony of P.Ws.1 to 10, some of whom are injured witnesses; that the doctor who examined the injured witnesses found certain grievous injuries on their bodies and therefore discarding their evidence is not proper; that all the accused persons shared the common object of eliminating the deceased and therefore she prays to convict the accused for the offence under Section 302 IPC.
11. On the other hand, learned counsel for the respondents in Crl.A.No.537 of 2008 contended that there is a longstanding enmity between the two groups; that there was a free fight between the two groups in the village and in that free fight among two groups it is impossible to identify which of the accused beat which witnesses and deceased and that no specific overt acts are stated by the witnesses to the police when they were examined during the course of investigation and that specific overt acts are attributed for the first time when the witnesses were examined in the Court; that almost all the witnesses were examined after twenty days; after the incident; that they sustained simple injuries and that there was an abnormal delay in lodging the First Information Report and further there was a delay in sending the report to the concerned Court and all these circumstances would go to show that after due deliberations and a false case was brought into existence; that though some of the accused sustained grievous injuries the prosecution failed to explain those injuries; that though the Inspector of Police came to know about the incident at about 4.30 p.m. and rushed to the village at about 5.30 p.m., he did not record any statements of the eye witnesses present there and he has not set the criminal law into motion and at about 8.30 p.m., P.W.1 lodged the complaint and therefore that is hit by Section 162 Cr.P.C., and therefore she prays to acquit the accused.
12. As seen from the evidence, there was a free fight between the two groups, one led by P.W.1 who belong to Yadava Community and another group led by A1, who belongs to Buragana Kalinga community. A1 and his group are being supported by Buragana Kalinga Community. The incident had taken place on 23.05.2000 at about 2.30 p.m. near the building foundation of Appalaswamy in Palatalagam village within the limits of Naupada Police Station. Every year, a festival is being taken place in the Goddess temple and it is not in dispute before this Court that hundreds of persons are proceeding towards the Goddess temple in a procession from harijan colony, which is on the western side of the village. It is also not in dispute that though the incident had taken place about 2.30 p.m., the Inspector of Police came to know about the incident at about 4.30 p.m. and reached the village at about 5.30 p.m., admittedly he did not record the statement of anyone of the injured witnesses or from the persons present there. For the purpose of setting the criminal law into motion, what all he states is that he has given importance for maintaining law and order by giving messages to the concerned police officials for the purpose of providing additional police personnel.
13. The death of the deceased-Badagala Prasadarao in the incident is not in dispute. P.W.12-doctor who conducted postmortem, found as many as seven injuries on the body of the deceased and opined that the deceased died on account of cardio respiratory arrest due to injury and bleeding to the vital organs and on account of multiple major injury to the head, and he issued Ex.P.11-postmortem certificate. He found the following injuries:
1. Incised injury on the left of the head extending from fore-head to back of head measuring 5" x 1" x 1".
2. Depressed fracture of left parietal 4" x 1"
3. 11/2" x 1/2" x 1/2" incised wound from root of the nose extending below the nose. Blood clots coming out from the nose.
4. Fracture of left frontal bone of 2". It is incised injury.
5. Fracture of right parietal bone extending to temporal bone 4 inches.
6. Incised of 6" x 1 1/2" below the left knee.
Fracture of Tibia and Fibula.
7. Incised wound right leg below the knee 1" x1/2" x1/2"
fracture of Tibia present.
14. There is no dispute with regard to the fact that the cause of the death of the deceased was homicidal. The homicidal nature of the death of the deceased is established. None of the witnesses stated about the origin or genesis of the occurrence. They simply stated that while they were present in their respective houses they heard some galata from outside and came out and saw all the accused armed with weapons like knives, spears, sticks and stones and attacked the prosecution witnesses. It is not at all the case of anyone of the prosecution witnesses that they were armed with any deadly weapons. The prosecution has failed to explain the injuries sustained by the accused. On the other hand, P.W.1, who set the criminal law into motion, has categorically stated that none of the accused sustained injuries. That means the prosecution has suppressed the origin or genesis of the occurrence. On this aspect, the learned counsel for the respondents relied upon the decision reported in STATE OF M.P. v. MISHRILAL (DIED) AND OTHERS 1, wherein it is held that:
Non-explanation of the injuries sustained by the accused:
The last and which appears to be fatal to the prosecution case is non- explanation of the injuries sustained by the accused. As already said, accused Mishrilal received as many as five injuries, which were dangerous to life. Madhusudan and Jamunaprasad received simple injuries. In Ex.P1 as well as in the entire deposition of P.Ws, the prosecution has not explained the injuries sustained by the accused. In the background of the defence, as set up by the accused, it was incumbent on the part of the prosecution, to have explained the injuries sustained by the accused. The defence version is that on the bullock cart of Babulal having retreated, the complainant party- Maharaj Singh, Gopal, Mathura Lal, Lakhan, Jagdish, Mulia, Kailash and Karan Singh came with lathis and farsa. Mathura Lal hit Mishrilal's head with the farsa and Babulal, Maharaj Singh and Karan Singh beat him. When Jamunaprasad came to save, he was also beaten up and on that Jamunaprasad ran towards the house and made two fires in the air to save his father. It is the case of the defence that the bullet, which struck Bhavarsingh, came from the house of Babulal. In the face of the defence version, which competes in probability with that of the prosecution case, it was mandatory on the part of the prosecution to have explained the injuries sustained by the acused and non-explanation of the injuries is fatal to the prosecution case. In Lakshmi Singh v. State of Bihar referring to earlier decisions in Mohar Rai v. State of Bihar it was held by this Court: (SCC pp.401- 02, para 12) "... where the prosecution fails to explain the injuries on the accused, two results follow: (I) that the evidence of the prosecution witnesses is untrue; and (2) that the injuries probabilise the plea taken by the appellants .. in a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences;
(1) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version; (2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;
(3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case.
The omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one... (However) there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries.
15. Therefore, in view of the above decision, it is clear that when the accused also sustained severe injuries in the course of the same incident, the prosecution has to explain those injuries in case they are severe injuries, but no such explanation was given by the prosecution witnesses. On the other hand, all the witnesses have stated that none of the accused sustained any injuries. On the other hand the evidence of Investigating Officer shows that nine persons in one group and ten persons in another group were lying with severe injuries. This is one circumstance to doubt the case of prosecution.
16. When there is a case and counter case the law is well settled that each case has to be decided on its own merits with reference to the evidence adduced by the prosecution. In this case, the incident had taken place at about 2.30 p.m., but the First Information Report was lodged at about 8.30 p.m. Further the First Information Report reached the Court on the next day at about 10.30 a.m. No doubt, the law is well settled that mere delay in registering the First Information Report and further delay in sending the same to the Court as contemplated under Section 157 of Cr.P.C. by itself is not a ground to discard or throw away the entire prosecution case, but when there is an unexplained delay in lodging the complaint and also in sending the same to the Court it can be taken as one circumstance to doubt the case of the prosecution.
17. The learned Public Prosecutor relied upon a decision reported in SUNIL KUMAR AND ANOTHER v. STATE OF RAJASTHAN 2, wherein it was held that:
"Great stress was laid on the alleged delay in dispatch of the FIR to the Ilaka Magistrate. FIR was recorded on 29-10-1999 at about 11.00 A.M. and reached the Magistrate on 30-10-1999 at about 12 noon. It cannot be laid down as a rule of universal application that whenever there is some delay in sending the FIR to the concerned magistrate, the prosecution version becomes unreliable. It would depend upon the facts of each case. In the instant case as appears from the records the investigation was taken up immediately and certain steps in investigation were taken. Therefore, the plea that there was no FIR in existence at the relevant time has no substance. Additionally, no question was asked to the investigating officer as to the reason for the alleged delayed dispatch of the FIR. Had this been done, investigating officer could have explained the circumstances. That having not been done, no adverse inference can be drawn".
18. On the other hand, the learned counsel for the respondents placed reliance on the decision reported in RAJEEVAN AND ANOTHER v. STATE OF KERALA3, wherein it was held that:
"As feared by the learned counsel for the appellants, the possibility of subsequent implication of the appellants as a result of afterthought, may be due to political bitterness, cannot be ruled out. This fact is further buttressed by the delayed placing of FIR before the Magistrate, non-satisfactory explanation given by the police officer regarding the blank sheets in Ext. P-30, counterfoil of the FIR and also by the closely written bottom part of Ext. P-1, statement by PW 1. All these factual circumstances read with the aforementioned decisions of this Court lead to the conclusion that it is not safe to rely upon the FIR in the instant case. The delay of 12 hours in filing FIR in the instant case irrespective of the fact that the police station is situated only at a distance of 100 metres from the spot of incident is another factor sufficient to doubt the genuineness of the FIR. Moreover, the prosecution did not satisfactorily explain the delayed lodging of the FIR with the Magistrate".
19. This aspect of the case has been dealt with by the Supreme Court by a three Judge Bench decision reported in BALRAM SINGH v STATE OF PUNJAB4, wherein it is held as follows:
"We have heard learned counsel for the parties and perused the records. It is true that there is some delay in the FIR reaching the jurisdictional Magistrate. In our opinion, the prosecution has given satisfactory explanation for this delay. The incident in question took place at about 8.30 p.m. on 5.5.1990 which must have gone on for some time before the injured could be transported to the hospital at Gurdaspur which is about 17 kms. away from the place of the incident. From the evidence of Dr. Sudhir Kumar, PW-3, it is clear that these injured persons and the deceased were brought to the hospital at about 10.25 p.m. and on coming to know of the medico-legal aspect of the case, he had intimated the Police Station at Gurdaspur of the incident but the said Police having come to know that the incident had occurred within the jurisdiction of Police Station Sadar Pathankot, informed the said Police of this medico-legal case which Police Station is situated at about 40 kms. from the place of the incident and taking into consideration said distance and the law and order situation then obtaining in Punjab, during the relevant period, we do not find anything unusual in the SHO of P.S. Sadar Pathankot, namely, Ram Dass, ASI, PW- 4, reaching the hospital around 9 a.m. on 6.5.1990. It has come in evidence that after recording the statement and making arrangements for the post mortem of the dead body of the deceased, the FIR recorded was sent to the jurisdictional Magistrate which reached him around 0305 hrs. on 6.5.1990. After considering the argument of learned counsel in regard to this delay in sending the FIR to the jurisdictional Magistrate, we notice that in reality there is no delay in preparing the FIR but there was some delay in transmitting the said information to the jurisdictional Magistrate. Having been satisfied with the fact that the FIR in question was registered in the morning of 6.5.1990, we do not think that the delay thereafter in communicating it to the jurisdictional Magistrate on the facts of this case, has really given any room to doubt that the said document (FIR) was created after much deliberations. At any rate, while considering the complaint of the appellants in regard to the delay in the FIR reaching the jurisdictional Magistrate, we will have to also bear in mind the creditworthiness of the ocular evidence adduced by the prosecution and if we find that such ocular evidence is worthy of acceptance, the element of delay in registering a complaint or sending the same to the jurisdictional Magistrate by itself would not in any manner weaken the prosecution case".
20. From the above decision, it is clear that the delay in lodging the First Information Report and further delay in sending the same by itself is not a ground to discard the testimony of the witnesses, but certainly the delay in registering the case and also sending the same to the Court can be taken as one circumstance, so as to doubt the prosecution case when there are other circumstances appearing in the prosecution evidence. From the facts and circumstances of the case, Ex.P1 is hit by Section 162 Cr.P.C. as it was brought into existence during the course of investigation. P.W.17-Investigating Officer admitted that the investigation was commenced from the movement he came to know about the incident and when he left headquarters. He came to know about the incident at 4.30 p.m., and reached scene of occurrence at 5.30 p.m. First Information Report was registered at 8.30 p.m. Therefore Ex.P1 cannot be used for corroboration to the evidence of P.W.1. Furthermore, the Investigating Officer has not given any explanation for not recording the statements of anyone of the witnesses present at the scene of occurrence even though he proceeded to the scene of occurrence within two hours after the incident. It is not the case of the Investigating Officer that he did not find any eye witnesses coming forward to give the earliest version of the incident. From the contradictions elicited as in Exs.D1 to D10, it is clear that the prosecution witnesses have come forward with different version of the incident. According to their evidence, only the women folk will go to the deity to offer prayers and all the gents would be present in the house itself. The contradictions would go to show that all of them were proceeding to the temple, the incident had taken place. Therefore, the evidence of the injured witnesses to the effect that they came out from their respective houses after hearing cries appears to be false and incorrect. These contradictions are material contradictions which will effect the credibility of the witnesses. Contradiction could be used either to impeach his credit or discredit him or pull down or bring down the reliability of the witness.
21. P.W.17-Investigating Officer stated that on receipt of phone message about taking place of rioting in Palatalagam village he rushed to the scene of occurrence and found nine persons in one group and ten persons in another group lying with severe injuries. Then, he shifted all the injured in a tractor and auto to the Government Hospital, Tekkali. He has not made any attempts to record the statements of anyone of the injured witnesses. No explanation was given as to why he did not record the statement of any person. After admitting the injured witnesses in the hospital, he came back to the village and stayed in the night. At about 10.00 p.m. he received the copy of the First Information Report. Till then he has not made any attempt to record the statements of any witnesses. Furthermore, there was abnormal delay in recording the statements of the witnesses in this case. More than 15 to 20 days after the incident, the statements of the eye witnesses were recorded. Though it is stated that all the injured witnesses were admitted in the hospital but it is the duty of the Investigating Officer to go to the hospital where the injured were being taken to treatment, examine them and record their statements. No explanation is forthcoming on the part of the Investigating Officer as to why he did not record the statements of the witnesses as contemplated under Section 161 (3) Cr.P.C. Furthermore, the scene of occurrence in the present case as well as in the counter case in Crime No.24/2000 are one and the same. The Investigating Officer admitted that it is a case of free fight between the two groups. In such a case, the question of invoking Section 149 IPC or Section 34 IPC may not arise. In case of free fight, it is pertinent to refer to a decision in AMRIK SINGH v STATE OF PUNJAB5, wherein it is held:
"The High Court, further held that this is a case of free fight. In coming to such a conclusion, the High Court has taken into consideration the fact that the accused as well as the deceased and PWs appeared at the place of occurrence armed with weapons and the quarrel took place immediately. This is a question of fact which does not warrant any interference. The question as to who commenced it first may not be much relevant and it has also been held in a number of cases that the participants should be liable for their individual acts. In this view of the matter, we have to examine the plea of each of the accused. We may, however, mention that in a case of free fight, the question of unlawful assembly is not ruled out".
22. In view of the several infirmities in the evidence of prosecution, it is not safe to place an implicit reliance on their evidence. At best accused persons have to be guilty of individual overt acts.
23. P.W.1 attributed specific overt acts against A2, A4, A6, A8 and A10 in causing injuries to the deceased. But no specific overt act was stated in the First Information Report. The First Information Report is a valuable piece of evidence which will give earliest case of the prosecution and which is registered at the earliest point of time, can be compared with later testimony of P.W.1 when he was examined in the Court. But in the cross examination he stated that he can only give specific overt acts against two persons. During the course of cross examination, at one stage, he denied his signature on Ex.P1 and after showing the signature for some time he stated that the signature appearing therein is his signature. Two things must have to bear in mind while weighing testimony of witness (i) the consistency of the different parts of narration (ii) the possibility or probability, the impossibility or improbability of the matters related- which afford, a sort of corroborative or counter evidence of those matters. The totality of the evidence of a witness has to be taken into consideration for fixing the probative value.
24. Coming to the evidence of P.W.2, he stated that for about 21/2 months he had taken treatment and he was unconscious for 20 or 25 days. But there is no medical certificate issued by the doctor to show that P.W.2 has taken treatment for 21/2 months as inpatient or that he was unconscious for 20 or 25 days. He also admitted that by the time he came to the scene of occurrence, Korrayi Laksmaiah, Korrayi Bujji and the deceased got injured, but again he says that in the first instance the deceased was attacked and thereafter he was attacked and later all the accused were attacked. In the chief examination, he stated that A2 beat him on the back of his leg whereas in the cross examination he stated that he beat him on the head. He also admitted that himself, P.W.1 and others were made as accused in the counter case as if they went and attacked them.
25. Coming to the evidence of P.W.3, he stated that A2, A4, A6, A8 and A10 beat the deceased. He himself admitted in the cross examination that by the time he went there on hearing cries, all the injured were already sustained injuries and fell down. That means he is not an eye witness to the occurrence. In the earliest opportunity, he did not state to the police that A.8 and A.10 beat the deceased. So, on his own saying, it is clear that when he came out from the house after hearing the cries, all the injured were found lying on the ground. Therefore, there is no scope or possibility to this witness to witness the incident.
26. Similarly, P.W.4 admittedly came to the scene of occurrence after the deceased and P.W.2 fell down on the ground. But he says that A6 and A14 beat him with stout stick, as a result of which he fell down. His evidence contradicts the evidence of the other witnesses. Similarly, the house of P.W.5 is located at a distance of 50 feet from the scene of occurrence. By the time he went to scene of occurrence, deceased, P.W.2 and P.W.3 already fell on the ground. About 1700 persons including both gents and ladies were proceeding towards the temple at the time of the incident. It is not in dispute that he did not specify the overt acts attributed to accused in causing injuries to the deceased as well as P.W.2 and P.W.3. Therefore, for the first time he is testifying with regard to the specific overt acts of accused attributed to the deceased and P.W.2 and P.W.3.
27. P.W.6 to P.W.8 are admittedly residing at a distance of 150 yards from the scene of occurrence. They stated that after the entire female members in the procession reached the temple, this incident had taken place. They did not attribute the specific overt acts of the accused to deceased and other injured witnesses when they were examined by the police. For the first time, they are testifying the same in Court. Therefore, the earliest version as deposed by them is contradictory to the statements made by them in the Court.
28. In the earlier statements, all the witnesses have stated that while they were about to reach the place of deity the incident had taken place. Whereas that version has been changed entirely stating that they were present in their respective houses, and after hearing the cries they came out from the houses. If a witness gives evidence in Court a version of the incident which is materially different from his previous statement made to police, it is an error to brush the contradiction or omission amounts to contradiction aside as being unimportant. A material contradiction merits careful consideration in determining whether witness is truthful and reliance can be placed on his evidence. Therefore, all the prosecution witnesses have not come to the Court with clean hands. Distorted versions have come into evidence thereby destroying the entire prosecution case. So, in these circumstances, it is not safe to place an implicit reliance on the evidence of all the witnesses, who, admittedly belong to one group. The evidence of P.W.1 to P.W.10 cannot be put into the category of wholly reliable. Then, in such circumstances, their evidence requires corroboration. There is no other evidence to show that the occurrence had taken place in the manner as projected by the prosecution. Though, hundreds of people were present at the time of the incident as procession was going on towards the place of deity, the Inspector of Police did not examine any independent witnesses, who do not belong to the group of P.W.1 or the group of A1. It is not as if the other independent witnesses did not witness the incident. Similarly, it is not the case of the Investigating Officer that at the time of conducting investigation no independent witness has come forward to speak about the incident.
29. As seen from the record, a perfunctory investigation has been conducted by the Investigating Officer. He has not conducted the investigation in accordance with law. He has not taken effective steps to conduct the investigation in correct lines. So, in view of the perfunctory investigation and in view of the delay in lodging the report and also the delay in sending the report to the Court and in view of the fact that the witnesses suppressed the origin and genesis of the occurrence, it is not safe to place an implicit reliance on the evidence of P.W.1 to P.W.10 so as to base the conviction. These aspects have been completely overlooked by the trial Court. Though the trial Court has given a correct finding with regard to the free fight between the two groups, but certain aspects have been overlooked and it came to a wrong conclusion in convicting the accused. For the aforesaid reasons, the evidence of P.W.1 to P.W.10, who have suppressed all the material aspects, cannot be basis for convicting the accused. Hence the appellants are found not guilty of the charges levelled against them.
30. In the result, Criminal Appeal No.1754 of 2006 is allowed. The conviction and sentences recorded by the trial Court against appellants in Criminal Appeal No.1754 of 2006 are set aside and they are found not guilty of the charges levelled against them and accordingly acquitted of the said offences and set at liberty. They shall be released forthwith if they are not required in any other case. Criminal Appeal No.537 of 2008 preferred by the State is dismissed. The miscellaneous petitions pending, if any, shall stand closed.
______________ K.C.BHANU, J _____________________________ M.S.RAMACHANDRA RAO, J DATED:18th March, 2013